Mewalal Singh and Another vs Emperor

Manohar Lall, J.—This is an application in revision by two accused, Mewalal Singh and Srikrishna Singh, against their conviction, of the former u/s 321/109 and of the latter u/s 324, Penal Code, both of whom have been sentenced to undergo three months rigorous imprisonment and a fine of Rs. 50 each. It appears that the complainant as well as the petitioners both claimed to be in possession of the plot of land on which the kharbi grew, the cutting of which has led to this occurrence. Each side gave evidence of its respective title and possession of the land, and in addition to that the defence of Mewalal was a plea of alibi. The trial Court disbelieved the defence and convicted the accused and awarded the sentences as already stated. The Appellate Court has affirmed the conviction but in my mind in an unsatisfactory judgment.

The learned Judge has correctly stated the points which were argued before him and which were the most material in the case, viz.: (1) that the plea of alibi of Mewalal ought to have been accepted; (2) that the defence story of the occurrence was more probable; and (3) that Srikrishna. Singh was entitled to a right of private defence, as the complainant committed theft of plantain and kharhi belonging to Srikrishna Singh. It will be noticed that the third point, as stated by the learned Sessions Judge, clearly suggests that the defence claimed that they were in possession and that the complainant was committing theft of their plantain and kharhi. In vain I have looked for in the judgment of the learned Sessions Judge for any finding as to whether the defence story of the theft by the complainant of plantain and kharhi was false, or, in other words, that the defence was not in possession of the land in dispute. He seems to have considered this point as nominal, which did not require any consideration at all. The learned Judge has given no finding as to the claim of the accused that they were protected by the right of private defence.

Again, I do not find anything in the judgment of the Appellate Court to show that the learned Judge applied his mind judicially to the fact that Mewalal had been proved to be guilty of the charge of abetment. The evidence of the alleged abetment has not been considered or analysed. It is a matter of common experience that charges of abetment are easily made against accused persons and are difficult to refute. I therefore feel no hesitation whatsoever in setting aside the conviction of the petitioner Mewalal Singh, who is directed to be set at liberty. If he is on bail, his bail bond will be discharged.

With respect to the case of the other petitioner, Srikrishna Singh, I am unable to dispose of the matter here. The learned Judge is directed to rehear the appeal of Srikrishna Singh in the light of the observations made by me above, and he is required to give a clear finding as to whether the possession of the land on which the kharhi crop grew and which was out on the date of the occurrence, was with the complainant or with Sri. krishna Singh.

In the event of his finding that the complainant was in possession of the land, be must then dispose of the matter whether the accused was entitled to a right of private defence or not. If he is satisfied that these two points have to be decided against the accused, he must consider the question of sentence, because, if it is true that the right of privacy of the accused''s household was being invaded, the accused, although he may have transgressed the law, may be liable to a lesser degree of punishment.

The learned Judge ought to remember that in criminal trials it is the duty of the Court to give a judicial finding with reference to the case of each individual accused, and that the evidence adduced on behalf of the accused in support of their case must also be carefully and fully considered. It is not expected that the Court would come to a conclusion in favour of the defence in every case; but justice must appear to be done to the accused, as well as in fact it must be done to the accused. With these remarks the case of Srikrishna Singh is remanded to the learned Judge for re-bearing and for disposal in accordance with law.

The petitioner, Srikrishna Singh, will remain on the same bail pending the disposal of the appeal by the learned Sessions Judge. As ordered above, petitioner Mewalal Singh will be acquitted and set at liberty forthwith.